Whitesea Shipping and Trading Corporation & Anor v El Paso Rio Clara Ltd & Ors

Parties

Procedural Posture

Commercial / Contested Application for Anti Suit Injunction

Legal Issues

1. 1 Whether the Claimants are entitled to an anti-suit injunction restraining insurer Defendants from pursuing proceedings in Brazil against third parties
2. 2 Whether enforcement of a covenant not to sue in a Himalaya clause is contrary to Article III rule 8 of the Hague Rules
3. 3 Whether the Claimants have sufficient practical interest to enforce the covenant not to sue

Ratio Decidendi

The covenant not to sue in the bills of lading is enforceable by the Claimants as carriers and does not confer blanket immunity on third parties, as none of the third parties undertook actual carriage of goods. Enforcement of the covenant is not contrary to Article III rule 8 of the Hague Rules. The Claimants have demonstrated sufficient practical interest in restraining the insurer Defendants from pursuing proceedings in Brazil against third parties.

Court Disposition

Anti-suit injunction granted

Orders

• Insurer Defendants restrained from continuing proceedings in Brazil against all parties being sued in Brazil
• Claimants entitled to similar injunction against proposed Nineteenth Defendant on a without notice basis, with liberty to apply to set aside